THE NECESSITY OF HAVING AN EMPLOYEE SOCIAL MEDIA USE POLICY or “Boy, that was one rough week for social media, employees and the President!”

It’s a fact of life. Employees use social media. This use can be both personal and for business. Sometimes the line between the two usages can be blurred. However, either use can impact your business – at times substantially, as the two following recent examples show. The message exemplified by these stories is that all businesses should have a written Social Media Use Policy in place for employees.

FIRST CAME THE BIRD

On August 31st, a woman “flips the bird” at the Presidential motorcade while riding her bicycle in Washington, D.C. A photo of the incident snapped by a White House photographer goes viral. The woman’s first mistake was to use the photo as her Facebook and Twitter profile picture. Her second mistake was that she promptly informed her employer, Akima LLC, that she is the woman in the photo even though you only see her from behind and there is nothing in the photo that identifies her or associates her with Akima.

Her employer wasted no time in informing her that her “obscene” action violated the company Social Media Policy and then firing her. The Social Media Policy states:

“Covered Social Media Activity that contains discriminatory, obscene, malicious or threatening content, is knowingly false, create [sic] a hostile work environment, or similar inappropriate or unlawful conduct will not be tolerated and will be subject to discipline up to an [sic] including termination of employment.”

Akima is a government contractor – so it would seem reasonable that this type of act by an employee could be viewed as likely to damage their reputation and business.

It’s important to highlight that the employee was not naïve about the role social media plays with her employer’s business, because she was also in charge of the company’s social media activities. It’s also interesting to note that had the photo gone viral without her using it as her Facebook and Twitter profile pictures, then she could not have been accused of violating the company’s social media policy.

However, the most ironic (or damning) backstory tidbit, as reported by the Huffington Post in an interview with the woman, is that last summer this same employee saw on Facebook the following public comment posted by a senior director of Akima in a discussion by one of the employees about the Black Lives Matter movement: “You’re a f------ Libtard a------.” The director was clearly identified as an employee of the employer on his Facebook page. The company reaction to this post? The director deleted it and, apparently, the company took no further action.

Legal Fallout?

Does the employee have any case against the employer? Probably not. She was an “at will” employee and could be fired for any reason at any time. What about her First Amendment right of free speech? Free speech is a right to express your opinion without government interference. However, generally, there is no First Amendment protection in a private workplace.

That said, employers still need to be careful to apply their Social Media Policies in an equitable manner based on gender, race, national origin and religion, otherwise there could be liability, and employers must be careful not to take any disciplinary action against what qualifies as “protected concerted activity” under the National Labor Relations Act.

THEN CAME THE MISSING TWITTER ACCOUNT

On November 3rd, on the last day of his employment, a Twitter employee expressed his political views against President Trump by deleting the President’s Twitter account. After an initial panic at Twitter, the account was restored. The account was down for 11 minutes.

What does this say about the level of security at Twitter that an employee could delete the most powerful Twitter account in the world? Think about it. What if instead of being deleted, the President’s Twitter account was hacked and false provocative Tweets were sent out? Given the potency of President Trump’s Tweets in general, just imagine the possible national or international havoc that could be wreaked by some rogue false provocative Tweets being sent out.

Legal Fallout?

From both Twitter’s and the Government’s perspective, I would expect this incident to be investigated by the Department of Justice and possibly prosecuted. Depending upon the employee’s permitted level of access, and the terms of Twitter’s employee Social Media Policy, the employee might have committed a crime under the Computer Fraud and Abuse Act (CFAA) which prohibits unauthorized access to a protected computer system.

Bottom Line?

All companies should have well-developed social media training and monitoring programs for all employees as well as clearly drafted Social Media Policies. The expense and effort necessary to manage social media use by employees is rather minimal and the damage that can result from misuse of social media can be substantial.

We prepare Social Media Policies tailored for each company’s specific needs and circumstances for a reasonable flat fee. Contact us for more information.

Share This Story, Choose Your Platform!

William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.